Posted
by
timothy
on Saturday September 20, 2008 @07:12PM
from the for-our-eyeballs-only dept.

RockMFR writes "A DMCA takedown notice sent by Nielsen Media Research to the Wikimedia Foundation has resulted in the deletion of over 300 pages on the English Wikipedia. The pages were 'templates' and categories that listed television stations within various geographical markets in the United States. Discussion of the deletions has focused on whether this type of information can actually be copyrighted, though the content of the takedown notice have not been made public."

Actually, the ability to force someone to cease speech on simple "say-so", without ever having visited court first, should never have become law in the first place. I believe DMCA takedown notices will eventually be determined to be a classic case of unbridled "prior restraint".

Actually a DMCA notice IS a legal threat and holds a lot of weight both ways. It can both be used as evidence that an attempt was made to contact the rights abuser that was ignored, as well as if the DMCA notice was in fact invalid and the "rights holder" did not in fact hold the claimed items, it is evidence for fines to be placed on the "rights holder" for illegally claimed ownership.

Unfortunately the second part is rarely if ever applied which is why we have the situations we do now. If even one major organization was forced to play the massive fines they are supposed to, it would be the end of frequent applications.

You are correct in that some compilations of facts are copyrightable as compilations, though that copyright does not extend to the facts within. However, like all copyrightable works, in order for a compilation to be copyrightable, it must be creative. In this case, the selection and arrangement of facts must be creative. Selecting all the facts, and arranging them in a pedestrian fashion would not qualify. This is why, for example, the white pages in phone books are not copyrightable: the selection is everyone with a listed number in the area covered, their names, their numbers, and their addresses, and the arrangement is alphabetical, by last name. It is the acme of an uncreative work. This is all discussed at length in the famous Feist decision by the Supreme Court; I'd suggest reading it. If it's uncopyrightable, verbatim copying is A-OK. There is absolutely no 'sweat of the brow' doctrine in the US.

A creative phone book would be one that didn't list everyone, and perhaps arranged them in some creative fashion. A listing of your favorite places to go, arranged by how much you like them, would probably qualify.

Whether the material at issue here is copyrightable or not, I couldn't venture an opinion, not having seen it.

I get marketing research phone calls from Neilsen subsidiaries doing surveys. If I have time, I do them. Now I'll tell them *NO*. You can't have it both ways, Nielsen. I suggest other readers do the same.

You are both right... but DustyShadow, you forget... you do not have to own a copyright in order to issue a DMCA takedown notice (you only need to own a copyright for it to be a valid DMCA takedown notice).

Yeah, you are supposed to own the copyright (or legally represent the owners for such matters, etc)... but big companies play this game quite often - and if fought, turn around with a "we're sorry" and never get penalized.

Nielson divides the country into "Market areas" some of which are stand-alone metro areas and some of which are combinations of cities which may contain "creative content." For example, if the metro areas A, B, C, and D are in close proximity, you can combine them in dozens of ways, ranging from lumping them all together into 1 market area, having 4 separate market areas, or one of several combinations of 2 or 3 market areas. Doing this across the country creates a list which is potentially copyrightable because it contains the creative thought that went into deciding just where to combine the metro areas into the market areas.

Whether Nielsen is a governmental entity or not is quite irrelevant here. The DMCA notice being used to restrain free speech takes its power from the threat of legal penalty which would be inflicted by the government.

Now it may be true that this notice isn't valid, and therefore doesn't have the actual force of the government behind it (the article is sort of short on details there so I don't know), but the fact that the DMCA is constructed such that companies have every incentive to obey take down notices whether valid or not means that the law, and hence the government is responsible for the restraint of free speech, at least indirectly.

The loophole is actually embedded in that statement. What is certified under penalty of perjury is that the information in the notice is accurate and that you are authorized to act on behalf of the copyright holder, NOT your good faith belief. So the notices are usually worded in such a manner as to be accurate, even in the case that they don't actually don't own the copyright. That just makes their good faith belief mistaken.

There's precedent with building codes. They're both law and copyrighted. And building codes aren't an obscure part of law - you essentially cannot get a permit to build anything without you (or your contractor) knowing the building code).

We don't know yet what the injury was. Soon we will, as the docs will have to become public. In the meantime, the wayback machine might give clues. Perhaps some of the data was lifted out of Neilsen copyrighted sources. If so, Neilsen can cry foul. If not, then it's just a glove thrown down. There's no downside to swearing out a DCMA notice, effectively, so Neilsen gets away with it.

Now, it's time to feed the EFF attorneys and get them marching, again. Does anyone else notice how the EFF has become the twin separated at birth from the ACLU? How awful that we need to get civil liberties protected from so many angles.

Offtopic, perhaps, but if a categorization schema can be copyrighted and summarily suppressed by Neilsen in this way, with the switch to digital in progress in the U.S., what's to prevent somebody from copyrighting and similarly suppressing transmissions themselves based upon a particular encryption algorithm used in the act of transmission?
Seems like it would set the stage for blanket censorship of the media at a fairly fundamental level, and that IS worrisome. At the very least, it could require visual media to be offered on a subscription basis only, which kinda negates the concept of free speech, doesn't it?

> Maybe they agree and took it down because they personally recognise> that the copyright belongs to Nielsen?

Er, probably not. The DCMA provides for non-judicial takedowns, but it also gives organizations which acquiesce to those takedowns a large amount of immunity to monetary damages. Practically everyone prefers to have to go through the rigmarole of removing the content, filing a counterclaim, and reinstating the content, in order to greatly lower financial exposure.

If an ISP / site ignores a takedown notice they lose immunity for copyright violations. Since ISPs generally have fairly deep pockets, the risk is WAY too great. They don't dare - the legal / monetary risk is way too great.Their insurance companies may ALSO require that they comply with takedown notices.

Note that if a site ignores a takedown notice, the person may just go upstream to their ISP and issue one there which can cause even LARGER danger / damage to the site. So they too will comply.